The United States is again in violation of international law. That is
a strong statement and one that reminds us of the invasion of Iraq,
Guantanamo bay, water-boarding, rendition, and the strong international
legal arguments made about these situations.

But in this case the violation will be hailed by many as a positive step.

On 6 November various ballot initiatives were voted on in the US,
from abolishing the death penalty to allowing assisted suicide, to
legalising gay marriage. Three had the clearest potential to render the
US in breach of international law if they succeeded. With the votes in Colorado and Washington which established a legally regulated framework
for non-medical production and sale of marijuana, that breach has now
occurred.

Some states have been pushing at the boundaries of these treaties for
some time, however, on particular points of contention that have
developed in the decades since the treaties were negotiated. Times have
changed since 1961. Grey areas have been exploited, arcane scheduling
systems utilised, and interpretations adopted that allow more room for
manoeuvre.

But what sets these ballot initiatives apart is that there is no grey
area to exploit, and it would take some legal gymnastics to interpret
your way past that. This is straight up legalisation (and regulation) of recreational
use, production, and sale, which is simply not permitted. It's what the system
was set up in large part to prohibit, with marijuana receiving
particular attention alongside coca and opium. While most substances are
listed in annexed schedules, these three are written into the very
terms of the treaties ('cannabis' is the term used).

The US (alongside over 180 other states) is required, under a very
robust and politically supported regime, to 'limit exclusively to
medical and scientific purposes the production, manufacture, export,
import, distribution of, trade in, use and possession of drugs'.

There is more, of course, and there are various provisos and caveats
on certain provisions, but this is a 'general obligation' of the regime
around which all else revolves. In other words, the US is not just in
breach of some marginal aspect of the system, now, but a fundamental
requirement of it that goes to the heart of prohibition.

Millions of US citizens are now permitted to buy and sell marijuana
for recreational purposes (regulations pending). These laws apply to a
population far exceeding that of Sweden (where I am currently sitting)
and way over twice the size of Ireland (where I'm from). This would be
supported by neither government, which have signed contracts with the US
in the form of these international agreements to the effect that none
of them would allow it. The fact that this has happened at state and not
federal level does not rectify the legal dilemma the US government now
faces.

Many in the US and worldwide are celebrating the results in Colorado
and Washington as the beginning of the end of the war on drugs - and
appropriately through a democratic process. People have voted for the US
to breach international law. That very few would have cared or knew
about this is not relevant. This is the fact of it.

There are now four possible scenarios. The US Federal Government can
fight it out, stepping all over state sovereignty. The US can withdraw
from the treaties in question. The treaties themselves can be changed by
international processes. Or the US can carry on in breach and turn a
blind eye. I think the fourth is the most likely. Ironically, this leads
inexorably to arguments for broader reform, but this is something the
US overnment has ardently opposed, even signing a recent declaration with the Russians to that effect.

So the implications for international law and the place of the UN drugs conventions within it must be considered.

We would not celebrate an ongoing breach by the US of the Convention
on the Elimination of Racial Discrimination or the International
Covenant on Civil and Political Rights, to which it is also bound. Nor
would we tolerate (though they happen regularly) violations of the
Geneva Conventions, the Torture Convention, the Nuclear
Non-Proliferation Treaty or environmental protocols. Indeed, there is a
hierarchy in international law that is exposed by the Colorado and
Washington votes.

But it is one within which the drug control regime has an unnaturally
elevated position due to the widespread political consensus around
prohibition, and fears that have been intentionally fuelled over the
years. Drugs, in the UN conventions, are seen as a threat to mankind,
and an 'evil' to be fought. Over time, respect for the UN drugs
conventions has been equated with respect for the rule of law itself.
'The three United Nations drug control conventions...set the
international rule of law that all States have agreed to respect and
implement' said the President of the UN's International Narcotics
Control Board (INCB) in a recent speech. (The INCB is the body that
monitors States' implementation of the drugs conventions). He has
confused the rule of law with specific laws.

There are some things that are wrong in themselves (malum in se) and
things that are wrong because they are prohibited (malum prohibitum).
But when it comes to drug laws, fighting something that is prohibited
has resulted in widespread acts that are wrong in themselves and that
breach basic legal principles - the rule of law.

The racially discriminatory nature of drug laws is common knowledge.
Some governments rely on the international regime to justify executions of people convicted of drug offences (in violation of international law,
in fact). Police violence, mass incarceration, denial of due process
are routine in States' pursuit of the general obligation the US now
breaches.

The international legal arguments about the Colorado and Washington
results will certainly arise. They must, though it will likely be in the
rather closed and stale environment of UN drugs diplomacy. When that
happens it must emerge is that these ballots are a victory for the rule
of law even as they bring the US into conflict with the drugs
conventions. Fundamental legal principles of proportionality, fairness
and justice, not to mention democracy, have won out over arbitrary and
unreasonable controls on human behaviour.

Ending the war on drugs, moreover, will be a victory for
international human rights law. It will be a victory for international
law itself - for environmental law, anti-corruption agreements,
international security, for the achievement of international development
agreements and improved health - all of which have been damaged by
decades of prohibition. Colorado and Washington have taken us one step
closer. For that we should all celebrate.

Wednesday, November 07, 2012

Last night was a historic moment
for the drug policy reform movement: two US
states, Washington and Colorado, voted to legally control, tax and
regulate cannabis for non-medical use.

They are not just the first US states to do this; they are the
first political jurisdictions anywhere in the world to take such a step.

The wider political fallout from this vote will be
significant. Firstly, there’s the potential for the domino effect: other states
might now feel emboldened to press ahead with similar ballot initiatives. Indeed,
last night showed that change is in the air, as Massachusetts
became the 18th US state to legalise medical marijuana, and California voted to
reform its notorious “three-strikes” law, which will mean those convicted of a
third non-violent felony – including drug offences – will no longer receive a
mandatory 25-to-life sentence.

Secondly, there remains the possibility that the federal
government will crack down on Colorado and Washington as they start
taking the necessary practical steps to legally regulate the cannabis trade –
something that remains unambiguously illegal under federal law. The governor of
Colorado –
who was personally opposed to the initiative – said in a statement:

“The voters have
spoken and we have to respect their will … This will be a complicated process,
but we intend to follow through.”

But he followed that up by – somewhat flippantly – reminding
voters that there may be a clash with the feds down the road:

“That said, federal
law still says marijuana is an illegal drug so don't break out the Cheetos or
gold fish too quickly.”

However it plays out, a clash with the federal government
over this new legislation will be a major news story, ensuring that the issue
of legal regulation maintains its place in the mainstream media and political
debate. This is obviously a plus for the reform movement; we know that exposure
to meaningful debate invariably pushes public opinion in the right direction
(the arguments for the war on drugs, while entrenched, cannot withstand scrutiny).
But despite tensions with federal law there is genuine cause for optimism given
that, rightly or wrongly, the protection of state rights from unwarranted
meddling by the federal government is a theme that runs through much of the political
discourse in the US, particularly among the Tea Party-style hardliners who might
be expected to be social conservatives and therefore opposed to legal
regulation. (Mitt Romney's running mate, Paul Ryan, for example, has been quoted as saying that it's up to individual states to decide whether to legalise medical marijuana.)The
question is whether their usual support for state-level policy making – and
disdain for “big government” legislation – extends far enough for them to
support – or at least not actively oppose – state-level legalisation initiatives.

Thirdly, there is the clash with international law. The new Colorado and Washington
legislation puts the states in clear breach of the general obligation of the
1961 UN drug convention requiring the criminalisation of non-medical supply and
use. The US,
perhaps ironically now, has historically been the biggest cheerleader for such prohibitions
on the global stage. A complete U-turn from this position isn’t realistic, but
it will be interesting to see whether, at the international level, they at
least tone down their “tough on drugs” rhetoric now that they themselves are
the first to do the previously unthinkable.

Even if there isn't much of a change in the US’s
posturing about drugs in international forums, the hypocrisy of demanding that
other nations carry on enforcing prohibition while they themselves are
retreating from it, could be enough to encourage a range of countries to start
agitating for reform. What is to stop the Netherlands, for example, from
finally solving its “back door problem” and legally regulating production and
supply to its cannabis coffee shops, which have for decades operated in a quasi-legal
paradox. Change is already well under way in Latin America,
and the developments in Colorado and Washington will only
help the region’s case for the need to explore alternatives to the war on
drugs.

Finally, while drug policy reformers – particularly those in
the US
who did such an incredible job mobilising support – should all be delighted
that these measures have passed, we should refrain being smug about these
victories. Although this news adds to the stream of positive developments over
the past couple of years, there is still a long way to go.

For outside
observers looking at these developments, the main concern with US legalisation will always be
over-commercialisation, and a policy model driven more by profit-seeking and the
interests of private enterprise than public health and wellbeing. It is vital
that if we are going to “regulate marijuana like alcohol” (as the slogan for
these ballot initiatives has argued), then we must learn from the mistakes made with inadequate alcohol (and also tobacco) regulation in the past. But
done right, it is clear that legal regulation will greatly reduce social and
health harms. Having secured their place in the history books as the first
places anywhere to break with the global prohibitionist regime, Colorado and Washington
now have a responsibility to do it right, and to show the world that legally
regulating drugs is a safe, logical and vitally important step to take.

Thursday, October 18, 2012

Although the US
has for a long time been one of the world’s most ardent supporters of global
prohibition, a number of its constituent states have demonstrated significantly
more progressive thinking on drugs. In 2010, a state level ballot - Proposition 19 - in California, very nearly led to legal regulation of cannabis in that state. And while the ballot
was narrowly defeated (53.5% vs 46.5%), it hinted at the extent of potential
support for drug policy reform among Americans.

As has been widely reported, there are now similar ballot
initiatives in Washington, Oregon
and Colorado,
and there's a strong chance at least one of them will pass. They all contain different provisions and details of their respective regulatory frameworks. These are summarised in this table (with thanks to the National Cannabis Coalition):

First $40M to Public School Capital Construction Assistance Fund; remainder to General Fund

Dedicated marijuana fund run by State
Liquor Control Board. $125K to Healthy Use Survey; $50K to social and
health reports; $5K to UW for web-based marijuana education; $1.5M to
State Liquor Control Board; remainder: 15% to drug treatment; 10% for
drug education; 1% to state university research; 50% to Washington
Health Plan; 5% to community health care; 0.3% to building bridges
program; remainder to General Fund.

There have been a series of intense debates within the US cannabis reform movement about the details of these ballots - with the new per se Driving Under the Influence (DUI) proposal on the Washington State ballot proving a particular flash point. This would establish a threshold quantity of THC in the blood that if found in drivers would lead to an automatic DUI prosecution, regardless of impairment. Without burrowing too far into the technicalities of this particular debate - in summary: the promoters of the ballot argued that a tough DUI provision, whilst not ideal, was a political necessity to get the ballot passed (anti reform critics frequently playing on the risk of stoned drivers), whilst opponents of this specific provision argued that it would lead to unfair prosecutions of people driving whilst not impaired - particularly under 21s. These debates have been complicated further by promotion of anti-ballot campaigns led by some of the commercial interests in the booming medical cannabis industry in these states, some of whom view the passing of the ballots as a threat to their businesses (not only is an unspecified, but assumed to be quite significant proportion of medical cannabis used for recreational non medical purposes, but with legal availability of a quality assured non medical product, the necessity for dedicated medical suppliers diminishes dramatically). This has all led led to the peculiar phenomenon of this year's Seattle Hempfest - the world's biggest annual cannabis festival, and by implication also the worlds biggest legalisation rally, was also simultaneously this year's biggest anti-legalisation rally.

Age controls are an especially good illustration of the
potential benefits of alcohol-style regulation, as a study a few years ago
from the US National Center on Addiction and Substance Abuse found that it was
easier for teenagers to buy cannabis than alcohol, which somewhat undermines the commonly heard “but-think-of-the-children!” critiques from the nay-sayers.

The governor of Colorado, John Hickenlooper, has criticised
cannabis regulation on just such grounds. He
said:

“[Amendment 64 has the] potential to
increase the number of children using drugs and would detract from efforts to
make Colorado
the healthiest state in the nation. It sends the wrong message to kids that
drugs are OK.”

This is interesting because, as Hickenlooper proudly told
the press not so long ago, he’s “the first brewer who’s even been a governor”. It’s
not clear whether Governor Hickenlooper’s career supplying Colorado
with the mind-altering drug alcohol represents his effort to make Colorado the healthiest
state in the nation, but it is clear that he doesn’t like the idea of people
supplying another (rival?) mind-altering drug out of concern for public health.

But even if the positive publicity does the trick and the
encouraging polling lasts until election day, there’s still the thorny issue of
the federal government to negotiate. It’s unlikely that were
any of the other initiatives to pass, the feds would sit back while states allowed activities that are in direct conflict with federal law.

This Monday, directors of the Office of National Drug
Control Policy spoke
to the Department of Justice to remind it that if any of the legalisation
initiatives pass, they would still be violating federal law and could trigger a
constitutional showdown. The ONDCP is clearly attempting to pressure Attorney
General Eric Holder into making a public statement opposing these measures, as
the Department of Justice is still yet to do so, despite only a couple of weeks
remaining until election day. Where this is all going to lead is not clear - we would be moving into uncharted territory; the first time anywhere in the world has unambiguously legalised and regulated production and sale of cannabis for non medical use.

Speaking to one of the architects of the prop-19 California ballot back in 2010, they were open about not having a plan for resolving state vs federal law tensions, or for that matter the less discussed but arguably even more significant issue of violating the International UN drug conventions, to which the US is a signatory (indeed they were the driving force behind their creation). Their plan was, as they put it - 'to start a shit storm and see where it leads'.

If the ONDCP have a plan - they are not letting on either (see this conversation Transform had with the US Drug Tsar in 2011).

Whatever the outcome of the votes, or of possible states
vs feds (or vs UN) legal wrangles, the ensuing drug policy debate can only be useful in raising
awareness of the issue, and could also provide greater political space for
other countries – like Mexico, Guatemala and Colombia, who
recently took their calls for change to the UN – to be more vocal in
speaking out against the war on drugs and be bolder in their moves towards more
substantial reform.

[ii] OCTA
only specifies that commercial cultivation and sales must be licensed
by OCC and that personal cultivation and sales need not be licensed.
Presumably, you could grow a football field of plants and possess a
large Hefty Bag full of pot under OCTA, so long as you sold none of it.

[iii] All hemp production still remains illegal under federal law without a DEA permit.

[iv] I-502 producers and processors may not have a direct or indirect financial interest in retailers.

[v] Colorado’s
TABOR requires any tax increase to go before a vote of the people. 15%
is merely the maximum authorized wholesale excise tax that the
legislature may enact.

[vi] Washington’s
medical marijuana law has no registry cards and only an affirmative
defense to prosecution. Thus, medical marijuana patients can now be
arrested by police, and then they have to provide an affirmative defense
to the judge. Under I-502, these patients would now be protected from
arrest for 1 ounce of cannabis, 16 ounces of medibles, or 72 ounces of
tinctures.

Presidents Santos, Calderon and molina addressing the UN General Assembly

photos: Reuters/UN

Today the same three states (Colombia, Guatemala and Mexico) have published a joint statement, presented in a letter to the UN Secretary General, that translates these sentiments into a coordinated challenge to the UN to review the current system and "analyze all available options, including regulatory or market measures". A translation of the full text of the statement has been reported by the Guatemala Times (below), and more background is available (in Spanish) here:

Joint declaration of Colombia,
Guatemala and Mexico concerning UN revision on drug policy. Oct. 1. The
governments of Colombia, Guatemala and Mexico, are convinced that
transnational organized crime and in particular the violence it
generates when carrying out their criminal activities, present a serious
problem that compromises the development, security and democratic
coexistence of all nations, and that the United Nations must urgently
address this issue: We declare: 1. That use of illicit drug is a powerful incentive for the activities of criminal organizations in all regions of the world.

2. That despite the efforts of the international community over
decades, the use of these substances continues to increase globally,
generating substantial income for criminal organizations worldwide.

3. That having financial resources of enormous magnitude, organizations
of transnational organized crime are able to penetrate and corrupt
institutions of the States.

4. That it is essential to implement effective measures to prevent illegal flows of arms to criminal organizations.

5. As long as the flow of resources from drug and weapons to criminal
organizations are not stopped, they will continue to threaten our
societies and governments.

6. That, consequently, it is urgent
to review the approach so far maintained by the international community
on drugs, in order to stop the flow of money from the illicit drug
market.

7. That this review should be conducted with rigor and
responsibility, on a scientific basis, in order to establish effective
public policies in this area.

8. That nations should intensify
their efforts to further strengthen the institutions and policies of
each country in the prevention and punishment of crime, their social
programs in education, health, leisure and employment, as well as
prevention and treatment of addictions to preserve social fabric.

9. That states should endorse their commitment to fight with
determination and according to the principle of shared and
differentiated responsibility, transnational criminal groups through
mechanisms of international cooperation.

10. That the United
Nations should exercise it´s leadership, as is it´s mandate, in this
effort and conduct deep reflection to analyze all available options,
including regulatory or market measures, in order to establish a new
paradigm that prevents the flow of resources to organized crime
organizations.

11. In this regard, the governments of Colombia,
Guatemala and Mexico invite Member States of the Organization of the
United Nations to undertake very soon a consultation process that
allows, taking stock of the strengths and limitations of the current
policy, and about the violence generated by the production, trafficking
and consumption of drugs in the world.

We believe that these
results should culminate in an international conference to allow the
necessary decisions in order to achieve more effective strategies and
tools with which the global community faces the challenge of drugs and
their consequences.

What makes today's development significant is that the call is made directly to the UN via the General Secretary. This is a clear step up from the call to a regional body, such as the OAS, or a more vague call to drug consumer countries (as with the Tuxtla Declaration).

As such this represents yet another example of growing fractures in the long standing consensus around the international drug control system. This is yet another open and explicit statement that reform is needed - but this time makes a clear call for an exploration of what such reform could entail - to be instigated at the highest level.

Initial indications suggest that the UN is keen to ignore this request, but if, as seems probable, some other Latin countries support this declaration (e.g. Uruguay, is looking to develop a Government regulated cannabis market) and particularly if support can be established from other regions, such as Europe - then the momentum for a global review process convened by the UN will become difficult to resist.

Interestingly this recent move echoes a call made in the UK Parliament in 2002. When the Home Affairs Select Committe last enquired into the effectiveness of UK drug policy it made this final recommendation:

"24. We recommend that the Government initiates a discussion within
the Commission on Narcotic Drugs of alternative ways—including the
possibility of legalisation and regulation—to tackle the global drugs
dilemma (paragraph 267)."

The committee included a young back bencher named David Cameron. One would hope that Prime Minister Cameron will now be pleased that his opposite numbers in Colombia, Guatemala and Mexico have had the courage to push forward the prescient call he made more than a decade ago.

Such a process is urgently needed, so there is cause to celebrate the progress we are now witnessing.

This week Transform Drug Policy Foundation opens a new office in Mexico City. It will be run by Transform’s first overseas staff member, with partner organisation Mexico Unido Contra la Delincuencia (MUCD).

As the failures of global drug prohibition become ever more obvious and the collateral damage grows, new actors, including the private sector in Mexico, are now keen to see policy alternatives on the mainstream political agenda. The 50,000 turf war deaths in Mexico over the last four years are a graphic demonstration of the failure of an enforcement-led approach, and underlines how terribly the policy has impacted across all sectors of Mexican society. A number of alternatives to prohibition are now emerging across the Latin American region, including in Uruguay, Guatemala, Colombia and Brazil.

In recognition of this fact, Transform has appointed Lisa Sánchez as its first Latin American Programme Manager to work with policymakers, groups and experts in Mexico and the region, using MUCD’s on-the-ground experience in Mexico and Transform’s groundbreaking resources and 15 years of experience advocating for the legal regulation of drugs.

Lisa Sánchez said: “With countries in Latin America no longer willing to blindly support a war on drugs that has cost them so dearly, the region is rapidly becoming the crucible where global change is being forged. Transform aims to contribute to, and support the work of all those in the region already fighting to bring about a just and effective approach to drugs, based on strict legal regulation.”

Armando Santacruz, board member of MUCD, said: “Just as the disastrous war on drugs operates internationally, so must groups campaigning for reform. That is why we are delighted to combine our expertise with Transform’s, to help ensure that the global market in illegal drugs that is destroying so many lives in Mexico is replaced by government regulation and control.”

3. Lisa Sánchez has worked in the fields of HIV, harm reduction and drug policy for the past six years. She served as programme leader for the Inter-American Drug Abuse Control Commission of the Organization of American States, where she was responsible for the design and implementation of the first Mexican training and certification programme for addiction counsellors, and is co-founder of the Drug Policy and Harm Reduction Programme of Espolea, a youth-led organisation based in Mexico City. Lisa has also collaborated with the Mexico City Institute against Addictions, the Academic Unit on Development Studies of the University of Zacatecas and worked for the International AIDS Society and the Mexican Consulate in Paris. As a young advocate, Lisa engaged in various initiatives concerning drug policy, HIV/AIDS, gender equality and SRHR. She has a degree in international relations from Tec de Monterrey and Sciences-Po Paris, and a graduate degree in political science from Sorbonne University in France.

4. In March 2012 the Organization of American States, including the US, committed to review all the alternatives to the war on drugs, including legal regulation. See: 'How the OAS drug policy review will work', Transform Drug Policy Foundation blog.

5. Transform Drug Policy Foundation is an NGO with special consultative status with the United Nations.

When the Uruguayan president José Mujica was asked about his proposal to make a historic break with global prohibition and put in place a legal state controlled market for cannabis he replied ‘Someone has to be first’.

In fact, recent years have seen reforms to cannabis policy and law proceeding apace around the world. The trend for decriminalisation of possession for personal use (with civil or administrative penalties replacing criminal ones) has spread across much of Europe, Latin America, and beyond. Some countries have gone further, finding various ways around the strictures of international prohibition (under the three UN drug conventions) to have de-facto legal supply as well. The famous Netherlands cannabis ‘coffee shops’ operate under a legal fudge in which their activities are technically illegal, but in practice are tolerated and licensed. The Spanish decriminalisation policy tolerates the personal possession of two plants, has allowed the creation of over 300 cannabis cooperatives. These pool the allowances of all their members, then farm and supply the resulting grass on a non-profit basis to these members, from premises managed by the cooperative.

Whilst the US initiatives are groundbreaking and, if current polling holds up, may well be the first real cracks in the edifice of global prohibition they are, like most reforms, being led by (excusing the pun) grass roots campaigns. One of the unique aspects of the Uruguayan legalisation proposal is that it is Government led. Indeed, the Mujica proposal for a state monopoly on cannabis production and supply has, ironically, run into conflict with another well progressed Uruguayan bill promoted by cannabis activists that seeks to decriminalise personal consumption of up to eight plants and establish cooperatives along the lines of the Spanish model.

Whilst unlikely to prove popular in the US, the idea of Government monopoly is appealing in many ways, certainly for a pioneering initiative such as this. It is vitally important to learn from the mistakes made with alcohol and tobacco regulation. That means avoiding over-commercialisation, and while allowing legal availability to adult consumers, putting in place a regulatory framework to minimise health and social harms, rather than maximise profits. What this means in practice has been explored in some detail in Transform’s ‘Blueprint for Regulation’ which outlines potential controls over products (potency, price, information on packaging etc), vendors (licensing, vetting, training requirements), venues for sale and consumption (location, appearance, opening hours), and availability (age access controls, membership clubs). A responsible government is a far better entity to develop such a model than the free market.

The regional context of the Mujica proposal is also critical. The debate on drug law reform in Latin America has accelerated, with multiple heads of state now openly tabling the possibility wider reforms including legalisation, and the Organization of American States currently reviewing all the options, as frustrations have grown with the deteriorating security situation and violence related to the drug trade. The perception is that Latin America carries an unacceptably heavy burden for drug consumption in the US and Europe, and that the externally imposed solution, a military and police led war on drugs, is costly and counterproductive – as Mexico in particular has found out to its cost in recent years.

The Mujica proposal is, perhaps unsurprisingly, couched within in a bill of security measures and is being primarily promoted on that basis, and as is often the case with drug reform legislation, it includes provisions for increased penalties for traffickers. It also faces a number of other hurdles; it needs to be reconciled with the decriminalisation bill, it does not enjoy majority public support (60% remain opposed). Then are the objections from the guardians of the prohibitionist status quo, the US and the UN drug agencies.

If or when the Uruguayan initiative will be realised remains impossible to say – they may be first, they may not. But it is now clear that someone will be, and soon. After decades of counterproductive failure, the era of blanket global prohibitions on drugs is finally coming to an end.

* just to note that this title was written by the Guardian editorial team, not us. We don't generally use the term 'relaxation' in trelation to drug law reform as it doesnt usefully describe what is in reality, a rolling out of potentially quite strict government regulation and control into an arena where currently there is none.

Friday, September 21, 2012

Danny Kushlick from Transform gave oral evidence to the Home Affairs Select Committee's Drugs Inquiry on 10th July 2012. He was asked about how the arguments
being made for drug law reform related to ’legal highs’ and non-medical
use of prescription drugs by Lorraine Fullbrook MP,
but given time constraints was unable to offer a full answer. The Chair, Keith Vaz MP invited Transform to submit additional evidence relating to
this question in writing. Transform have therefore prepared and submitted the following suplementary notes on policy and legal responses to novel psychoactive substances (‘legal highs’) and non-medical use of prescription drugs.

Summary points

The market for legal novel psychoactive substances (NPS), and non medical use of prescription drugs has emerged due to high and resilient demand for certain prohibited drugs. Both phenomena can therefore be seen as an unintended consequence of drug prohibition and the corresponding absence of any legal supply route to meet demand.

The legal NPS market is associated with significant risks that directly relate to the lack of market regulation. Prohibitions on NPS can, however, have unintended consequences; creating a void in the market for new NPS, creating an illegal market for established NPS, or displacing use back to illegal substances for which legal NPS may have been substitutes.

Until demand reduction efforts prove more effective, the reality of demand as it currently exists must be dealt with pragmatically. Recent experiences show that prohibitions do not eliminate the problem and may increase harms.

Policy responses should seek to reduce the health and social costs associated with the use of drugs, and the markets that supply them. Leaving an unregulated legal market, or blanket prohibition (in all likelihood resulting in an unregulated criminal market) as the only options is blinkered and irrational.

There are a range of regulatory models that can be considered, allowing controls over products, vendors and availability – these offer potentially significant reduction in the harms associated with NPS and it would be negligent to rule them out. They have been experimented with in some countries, and are being considered by the current European Commission impact assessment of NPS.

Such developments might appear at odds with the prevailing prohibitionist ethos – but they may in fact offer a unique opportunity for a controlled experiment; guiding drug policy by pragmatic health principles rather than ‘tough on drugs’ posturing or knee jerk populism.

Background and context

Transform aims to support development of the most effective models for the regulation and control of non-medical drugs. The aim is to reduce the health and social harms associated with use of drugs, as well as wider social harms associated with the drug markets.

Improved regulation of currently legal drugs , most obviously including alcohol and tobacco; including controls on price/taxation, packaging, age controls, branding and advertising etc (See ‘After the War on Drugs; Blueprint for Regulation’ chapter 5).

The goal of both processes is to establish the optimal model of regulation to achieve the shared goals of minimised health and social harms (see points 2.1 and 2.2 in our earlier submission[ii]). Both involve increased levels of regulation, even if the starting point is different: the former in which regulation has effectively been abdicated to unregulated criminal profiteers, the latter which has seen historical under-regulation and corresponding over-commercialisation.

Transform’s position on the non-medical misuse of prescription drugs and the recent emergence of a range of novel psychoactive substances is informed by the same rationale.

It is vital that both trends, and responses to them, are seen in the context of

historically rising demand for non-medical drugs under a legal/policy framework which strictly prohibits most of those in greatest demand.

the fact that drugs with similar effects – whether stimulants, psychedelic or depressant effects are easily substituted by users.

the reality that there are a range of factors that influence drug user choices between one drug and another – these include relative cost, availability, quality (purity/reliability), perceived risk and legal status.

Novel Psychoactive Substances

These are sometimes referred to in political and media discourse as ‘legal highs’ – a term initially coined by those marketing them, and then latched onto by the media, but one that is increasingly unhelpful, not least because many of them are no longer legal (alcohol and tobacco are curiously never included under this moniker). ‘Novel Psychoactive Substance’ (NPS) is a more accurate and focused term. There are a range of substances that come under this broad NPS heading, including a number of psychedelics[iii], but the majority of the market (and correspondingly, concern amongst the drugs field and policy makers) has been and remains made up of synthetic stimulants, such as BZP, mephedrone, and naphyrone. These drugs meet the demand for stimulants that has historically been met by more familiar illegal drugs including cocaine, ecstasy/MDMA and amphetamines. An additional group of products are made using synthetic cannabinoids that mimic the effect of cannabis.

Focusing on the stimulant grouping; as an alternative to the more familiar illegal drugs, there are a number of reasons why the legally available NPS may be perceived as preferable:

they are often relatively cheaper

they are more consistent in quality/strength (for context cocaine and ecstasy has been deteriorating in purity and consistency over the last decade)

they are effectively freely available from online suppliers or local ‘headshops’, thus avoiding the risks and pitfalls of engaging with the criminal market place

Whilst there is little evidence to suggest illegality is a significant deterrent, legal NPS still have the relative advantage of not being associated with the risk of arrest, prosecution and a criminal record.

Amongst the stimulant groups of NPS there has been an observable trend of new products emerging, establishing a market, and then being prohibited – often following a burst of high profile media around their risks. BZP was the first notable example in the UK, growing in popularity around 2004-6 before being prohibited for sale (but not importation and use) under the Medicines Act in 2007 and then prohibited outright under the Misuse of Drugs Act in 2009.

Mephedrone emerged rapidly during 2009-2010, arguably, to some extent filling the void in the ‘legal high’ market created by the BZP ban. Mephedrone was then prohibited under the Misuse of Drugs Act in late 2010. Following this ban a large number[iv] of other synthetic stimulants have subsequently emerged onto the market.

The market is effectively unregulated, creating a series of risks:

There no quality controls. Whilst the quality (in terms of purity) of BZP and mephedrone before their respective bans, appears to have been quite high and reliable, more recently quality of legal NPS seems to have become more variable. Recent research[v] based on analysis of test purchases (published in July 2012) suggested that many of the substance being sold online as ‘legal highs’ contained substances other than those advertised , often including prohibited substances . Studies have suggested that some users now accept the unpredictability of what they are consuming – referring to what is sometimes called ‘bubble’, an unspecified/unidentified white powder that will have some level of psychoactive effect[vi].

Because these products cannot be sold for human consumption they are sold for other purposes – such as ‘research chemicals’, ‘bath salts’ or ‘plant food’. This means appropriate levels of information are not being available on packaging concerning content, dosage, and risk/harm reduction information.

There are no age controls for purchase. Whilst most ‘head shop’ sales have some (often inadequate) voluntary age controls in place, online sales have little or none – meaning these products are effectively available to anyone able to purchase online. For younger or novice users the unregulated legality - when viewed alongside strict prohibitions on other drugs - may give the inaccurate impression that the legal status and availability implies relative safety[vii]. There is some evidence that as well providing a substitute for illegal drugs some NPS have been gateways to initiation of some younger first time drugs users.

The rapidly changing nature of the NPS market creates additional challenges for the police – who are unable to identify substance; forensic services – who have to test for them; emergency services – who have difficulty identifying what substances an individual in an emergency situation may have taken, and drug service providers – who have little information on how to deal with problematic use of such drugs, assuming they can be identified.

Discussion points

The ‘legal’ NPS market has largely emerged in response to demand for the effect the drugs provide in the context of historic prohibitions on such products. When legal products arrive that compare favourably to their illegal counterparts in terms of effect, risk[viii], quality and price – it is unsurprising that they become popular, and to some extent displace some illegal drugs. This phenomenon, and the specific challenges created by the rapid emergence of multiple NPS with unknown risk profiles occurs largely because of the lack of legal availability of more familiar and well understood drugs such as cannabis, ecstasy/MDMA, cocaine and amphetamines.

The emergence of NPS can therefore be seen as driven primarily by the prohibitionist legal environment. There would have been, for example, no demand or market opportunity for products like ‘Spice’ (one of the popular brand names for - now prohibited - synthetic cannabis products) if cannabis were legally available. Whilst demand remains for a particular drug (or drug effect), the profit opportunity this creates means that the market will always find a way to meet it - whether legal or illegal.

Just as the emergence of NPS are an unintended consequence of historic prohibitions, so prohibiting a particular NPS can then have significant unintended consequences. Especially when demand for a given substance has been established, a ban is likely to have one or more of the following impacts:

Create a void in the legal NPS market into which one or more new substance will move (the net health impacts of which are impossible to predict)

Divert users back to the illegal substances the NPS are likely to have been a substitute for (exposing users to the risk of the illegal market and criminalisation over and above the risks of the drug use)

Lead to the emergence of criminal market for the formerly legal NPS – in which it is likely that the quality (in terms of purity and reliability) of the product decreases and the cost increases.

Illustrative of this is that all of these impacts have been observed to some extent in the wake of the 2010 mephedrone ban.

What can be done?

New powers now exist to establish a 12 month ban on importation and sale of drugs following advice from the ACMD – to allow for an appraisal of risks, and decide on what course to take (notably, possession of these ‘banned’ drugs is not criminalised).

Whilst the ACMD are well qualified to provide a risk assessment (at least with what limited evidence is available) the problem they face is translating this analysis into effective policy recommendations given the lack of options available to them. Currently the options, once any temporary import and sale ban expires, are limited to either an outright ban under the MDA, or unregulated legal free for all. As this briefing makes clear, both scenarios are highly problematic.

There is an urgent need to explore options that occupy the middle ground between blanket prohibition and unregulated free market. These could allow regulatory tools be deployed that offer a degree of control over products, vendors, and availability.

Some limited potential exists for using trading standards legislation or medicines legislation[ix], but neither are adequate in the long term – what is needed is dedicated legislation and a regulatory model, custom made for the purpose of controlling non medical use of potentially risky psychoactive drugs. International law (the UN drug conventions) has been a barrier to exploration of such models for currently illegal drugs – but no such barrier exists for NPS. As such they provide an opportunity to explore regulatory alternatives to the obvious failings and counterproductive nature of blanket prohibitions.

Clearly no substance should be allowed into any commercial market without at least a basic level of risk evaluation so a default prohibition on commercial sale of any new NPS is justified. However, such bans on emerging products will only be effective if there is a regulated outlet of other products that can meet pre-existing demand. Without some form of legally regulated supply the problems outlined above will inevitably continue, and in all likelihood get worse. Some form of regulated availability does not, of course, preclude increased investment in evidence based prevention and risk education that targets vulnerable populations – indeed, such interventions should form part of any drug policy.

In the longer term any regulated models for legal availability of NPS (as happened in New Zealand for BZP) are likely to create a problematic inconsistency between legal and illegal drugs – not least in terms of perception of risk. There is a need to explore models of regulation for all currently illegal drugs as well to create a level playing field – the rationale for which is explored in more detail in Transform’s previous submission.

Prescription drugs

The non medical use of prescription drugs is also primarily demand driven and is unlikely to be substantially reduced unless alternative supply routes that meet demand are established, or demand can be reduced in the longer term. The ready availability of certain drugs, such as benzodiazepines, opiates, and amphetamines is a by-product of their extensive medical use. A strong argument can be made that many are either overprescribed, or that prescribing controls are inadequate. Increasing restrictions may appear an obvious solution, but there may again be unintended consequences in terms of displacing users to higher risk illegal drugs. Recent experiences in the US of an increase in heroin use following clampdowns on availability of some prescription opiates are illustrative of this risk[x]. The pragmatic solution would involve regulated supply of drugs that meets demand for non medical use in the short term, combined with longer term efforts to reduce demand.

As with NPS the choice is: unregulated legal markets, regulated legal markets or illegal markets controlled by criminal entrepreneurs; there must be no pretence that drugs can be eliminated altogether. Recommendation:

Detailed examination of options for regulation of NPS may be beyond the scope of this inquiry. However, the committee should recommend that such options be explored by the appropriate body. Reference can be made to the Impact Assessment of options for NPS currently being undertaken by the European Commission, as well as work undertaken by UKDPC/Demos, and the experiences of New Zealand in regulating sales of BZP.

[iii] Whilst some pharmaceutical preparations have psychedelic properties, most of the ‘legal’ psychedelics market is dried plant products, notably including dried fly agaric mushrooms and dried peyote cactus. Neither are actually ‘novel’ having been consumed for 1000s of years.

[viii] In the absence of any formal evaluation, health risks are largely unknown, leaving knowledge on short and medium term risks to be established in an ad hoc, inadequate and dangerous fashion by experimental users and early adopters.

Thursday, September 20, 2012

At the Summit of the Americas in Cartagena earlier this year, a decision was taken to conduct
a pan-American review of drug policy in the region. It is now well underway.

We now know the terms of reference for the review, what it will comprise of, and the
timeline for the work of OAS/CICAD. Click the image below to see more:

The timeline in the document shows that the two elements of
the project – an analytical report and a scenario planning process – will be
completed by June 2013. Text below in italics is cut and pasted from the report.

Analytical element

The Technical Unit of the OAS will compile and analyze the
information for the analytical report, which will be divided into the following
chapters consistent with the different areas of the problem targeted by the
study:

Relationship between drugs and public health

Relationship between drugs and economic and social development

Security challenges as reflected in the nexus between drugs, violence and organized crime

Production and supply of drugs, pharmaceuticals, and chemical precursors

Legal and regulatory approaches to the drug problem

The comprehensive, transparent report will also highlight
the systemic inter-relationships among these areas.

The report will not provide specific policy recommendations
but rather lay out different sets of policy options.

Each of the former chapters will:

Provide a baseline analysis of the current state of play in the region with respect to the drug situation

Examine best practices and promising new approaches being pursued by different countries, with the point of departure being the Hemispheric Drug Strategy

The scenario report will be carried out with the contributions
of Dr. Adam Kahane, Partner of Reos Partners and
Associate Fellow at the SaïdBusinessSchool,
University of Oxford. Kahane is the
organizer, designer and facilitator of processes in which political leaders,
businessmen and civil society leaders work together to address their most
complex challenges. He is the author of "How to Solve Complex
Problems: a Novel Way
of Speaking, Listening and Creating New Realities," “Power
and Love: A Theory and Practice for Social Change " and
"Transformative Scenario Planning: Working Together to Change the
Future." Kahane organized and managed scenario projects
including “Destino
Colombia" (1996), and "Visión Guatemala" (1998), and
managed scenario programs in Bolivia,
Argentina, Paraguay, Peru,
El Salvador, and Honduras.

We can safely assume that the scenario planning element is likely to provide the most room to explore alternatives as it would appear to be a process less vulnerable to political interference.

One last point is worth making. Section 3 of the
report is headed WHAT THIS PROJECT WILL NOT DO. This is
telling. Nowhere in the report does it say what the report WILL
do. We can assume that this is a clear attempt, presumably by the US and their
allies, or by those wishing to appease them, to denude the process of any usefulness
in the real world. It says: This proposal does NOT intend to:

Propose recommendations for changes in national drug control
policies

Promote a debate or a specific proposal on drug legalization

Disregard the basis for current policies, including the
Hemispheric Drug Strategy and Plan of Action 2011-2015

Serve as a platform for a political negotiation

Define or promote an ideal or favorite scenario

So, on the face of it a very important piece of work, on the
other, one that is being steered very heavily away from having any real
political traction, attempting to turn it into an academic exercise. This
is no surprise, given that the US
is involved in it. However, the shifting dynamics in both North and South America make for an interesting process and an even more interesting
entry for the report into the geopolitical sphere next June.

Lastly, here is a link to a video of a seminar that took place at the Center for Hemispheric Defense Studies - “Current Perspectives on Illicit Drug Policies”, on May 11, 2012. It demonstrates the key perspectives in the global drug policy debate - including contributions from:

The Honorable Marilyn A. QuagliottiDeputy Director for Supply Reduction, Office of National Drug Control Policy, ONDCP,“U.S. Drug Policy and the Obama Administration’s Efforts to
Rebalance the Way the U.S. Addresses This Global Challenge”

Dr. Craig Deare Interim Dean of Academic Affairs/Dean of Administration, CISA“Support for Decriminalization and Opinions on the Legalization of Illicit Drugs”

Tuesday, September 18, 2012

This comment piece was first published on OpenDemocracy,
under the title: ‘It is time for a post-drug war Marshall Plan’, 1 August 2012

If prohibition was a genuine protection racket, at least we
would be protected from harm. But it isn’t. It is much worse than that. It is
effectively an “endangerment racket”, argues Danny Kushlick

Fifty years ago almost every United Nations member state
signed up to support a global prohibition on the non-medical use of certain
drugs. Ever since, citizens all over the world have repeatedly voted for
governments that proclaim the virtues of fighting a “war on drugs”. Through
taxes we pay governments to enforce drug laws to protect us, our children, our
communities and our countries from the all too real harms of drug misuse.

However, the regime of prohibition (the criminalisation of
production, supply and use) has been applied only to certain drugs. It has
rarely been applied to tobacco and alcohol. But who does this prohibition
protect?

In a classic protection racket, a racketeer threatens damage
to a business, or harm to an individual, unless the victim pays the racketeer
“protection” money. The 1961 UN
Single Convention on drugs, to which the UK is a signatory, frames its
approach in terms of a concern for the “health and welfare of mankind” and a
desire to “combat” the “serious evil” of “addiction to narcotic drugs”. It then
places an obligation on signatories to put in place a blanket prohibition (and
thereby eliminate use and eradicate supply) in order to protect us from this
“evil”.

The threat, as articulated, is that if we do not support the
prohibition, the “evil” will take over and we will no longer be “protected”
from addiction. But the global prohibition – the “war on drugs” – has
singularly failed to stop people using drugs. The reality is that worldwide
there are up to 300 million users. All the evidence shows that the level of law
enforcement has little or no correlation with levels of drug misuse.

Not only has law failed to regulate drugs misuse, like
alcohol prohibition, the war on drugs has gifted the multi-billion pound trade
to drug-trafficking organisations and unregulated dealers, who are genuinely
dangerous to all of us, our children and our communities. In 2008, The UN Office on Drugs and Crime conceded that the
“drug control system” (a euphemism for prohibition) itself fuels the $320
billion a year criminal trade, describing it as one of five major “unintended
consequences”. The recently published Alternative
World Drug Report gives an even more comprehensive exposition of the harms
caused by the war on drugs.

Governments use this “unintended consequence” - the creation
of the second largest money earner for organised crime globally - as a further
pretext to demand more “protection” money. However, this second payment, now
apparently spent on fighting organised crime, does nothing to stop drug
trafficking organisations. In fact, it serves as a price support mechanism,
turning simple agricultural products into commodities literally worth more than
their weight in gold. An understanding of basic economics tells us that
squeezing the supply of any trade that has a high and resilient level of demand will serve only to
raise the price (notwithstanding the fact that prices are further hiked by
virtue of the risk undertaken throughout the supply chain). And so a
self-perpetuating vicious circle is created, whereby control of the market by
unregulated suppliers is used to justify continuation or escalation of the war.

These two “rackets” (the one built upon the other) have not
only failed to protect communities and children, but have also brought entire
nation-states to their knees. Prohibition has turned Guinea Bissau, for
example, from a fragile state to a narco-state within months of the cocaine
trade crossing its borders.

Prohibition has also brought the law into disrepute around
the world, as millions break an unenforceable law mastly using whatever drugs they
want, whilst the vast criminal profits are used to corrupt officials at all
levels. Prohibition has made the drugs trade as dirty and dangerous as it could
possibly be; unregulated dealers sell adulterated drugs to minors and violent
criminals control much of the trade, and more than 50,000 Mexicans have died in
drug-related violence since 2006. Year after year the Afghan poppy crop supplies
the majority of the raw material for the manufacture of illegal heroin.

If prohibition was a genuine protection racket, at least we
would be protected from harm. But it isn’t. It is much worse than that. It is
effectively an “endangerment racket”. The first payment we make creates
plentiful money-making opportunities for organised crime. The second payment
provides the budgets for those given the task of “fighting organised crime” –
FBI, CIA DEA, SOCA and many others around the world. The second payment of
“endangerment money” distracts us from the fallout from the first racket and
further serves to perpetuate the overarching prohibitionist regime.

However, there is good news. Governments are not organised
crime groups. We can stop paying “endangerment money” any time we like, by
voting for an individual or party that is seeking alternatives to global
prohibition, and the endangerment racket that accompanies it.

We can stop governments spending our money on a regime that
ultimately endangers those who are most vulnerable and at risk, and press them
to reassign the vast sums involved to a “post-drug war Marshall Plan”. Around
the world we are seeing the beginning of more pragmatic approaches to legalisation and regulation.
As citizens we have a choice. We can use our vote for peace – or for war.

This blog has many contributors; blog entries or comments posted to blog are not necessarily the views of Transform Drug Policy Foundation. For official comment or position statements on any given topic, or with any feedback or queries, please contact Transform. Transform Drug Policy Foundation is a registered charity No. 1100518